In a claim for negligence, the essential question is: who was responsible for preventing the negligent act?
In Hawley v Luminar Leisure Ltd, the Court of Appeal has said that Luminar Leisure was liable for David Hawley's injuries even though they did not directly employ the bouncer who caused them.
Mr Hawley's union, the FBU, instructed Thompsons to act on his behalf.
What were the basic facts?
Jeffrey Warren was employed from 1998 by ASE Security Services as a doorman at the Rock Café in Southend, which was owned and run by Luminar. At an incident in August 2000, Mr Warren hit Mr Hawley so hard that the former firefighter fell and suffered permanent brain damage.
Mr Hawley sued Luminar as well as ASE, arguing that the nightclub had so much control over the security staff that it had effectively become their "temporary deemed employer".
Before the case came to trial, however, ASE went into liquidation and did not file a defence. The court issued judgement against them anyway (known as a "default judgement").
Their insurers then refused to indemnify ASE, saying that the assault was intentional. They were then added to the proceedings as third defendants.
What did the High Court decide?
The judge said that the insurers should pay up under the terms of a policy that covered legal liability for damages arising from "accidental bodily injury to any person".
The judge also said that Luminar was vicariously liable for the actions of Mr Warren on the basis that they had sufficient control over ASE's employees to make them "temporary deemed employees".
What did the parties argue?
Luminar argued that they had contracted with ASE as a "specialist independent contractor" to be responsible for security at the club. They said that although they may have told ASE's employees where they should stand and which customers to admit, this did not mean that they controlled the ways in which ASE's employees carried out their work.
Alternatively, they argued that, given the recent decision in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and ors (LELR 107), ASE should also be found to be vicariously liable for Mr Warren's behaviour. In other words, that there was dual liability.
The insurers, not surprisingly, argued that only Luminar was vicariously liable for Mr Hawley's injuries, and that they should not therefore have to pay up under the terms of ASE's insurance policy which, they pointed out, only covered accidental injury.
What did the Court of Appeal Decide?
The court found that Luminar was in overall charge of security; that the doormen were all part of the Luminar team; and that all of them wore the club's uniform.
Luminar decided which customers to admit, which to exclude and which to reject. They told the doormen where to stand and when to move. And the Luminar management exercised detailed control not only over what the door stewards did but how they were to do it.
On that basis, the court said that "Luminar had control of and responsibility for ASE's employees in fact and by virtue of the contractual provisions."
As for dual liability, the court said that "there has been effectively and substantially a transfer of control and responsibility from ASE to Luminar." The answer to the question as to who was "entitled and therefore obliged to control Mr Warren's act so as to prevent it", was Luminar.
And the court said that the insurers also had to pay up. The question of whether Mr Hawley's injuries were "accidental" had to be judged from the perspective of the assured (in other words, ASE), not the individual perpetrator or the victim.
Because the policy referred to circumstances that could give rise to "criminal proceedings", the court said that the concept of "accidental bodily injury" in the policy could therefore extend to bodily injury which was intended by the perpetrator, if not by the assured.